Secretary of Labor v. Turner Brothers, Inc. (ALJ decision, March 25, 1985)

Plain-English summary

MSHA cited Turner Brothers after an employee rode outside the cab of an operating front end loader and after a truck with severely defective steering was used on a mine haul road. Judge Gary Melick rejected the claim that the employee had to ride on the loader for instruction because he could have watched safely from the ground. The judge also found that the truck's steering defect created a serious collision risk even at low speed. He affirmed both violations and their significant and substantial findings, and assessed penalties of $300 and $600, for a total of $900. The decision uses different numbers for the loader citation in its discussion and final order; the full text preserves both as printed.

Decision snapshot

• Cited standards: 30 C.F.R. § 77.1601(c) (riding outside mobile equipment cabs) and 30 C.F.R. § 77.404(a) (maintaining equipment in safe operating condition).
• Outcome: Both violations affirmed with significant and substantial findings; $900 total penalty assessed.
• Key point: Instruction did not require a miner to ride outside the loader cab, and the truck's steering defect posed a collision hazard.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. TURNER BROTHERS
DDATE:
19850325
TTEXT:
~424
Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. CENT 85-2
PETITIONER
A.C. No. 34-01357-03507
v.
Welch Mine No. 1
TURNER BROTHERS, INC.,
RESPONDENT

Appearances: Ann Maria Soares, Esq., and Jack F. Ostrander, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas, for Petitioner;
Robert J. Petrick, Esq., Muskogee, Oklahoma, for Respondent.

DECISION

Before: Judge Melick

This case is before me upon the petition for civil penalty filed by Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et. seq., the "Act," for two violations of regulatory standards. The general issues before me are whether Turner Brothers Inc. (Turner) has violated the regulations as alleged, and if so, whether those violations were of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard, i.e. whether the violations were "significant and substantial." If violations are found, it will also be necessary to determine the appropriate civil penalty to be assessed in accordance with section 110(i) of the Act.

Citation Number 2218067, issued under section 104(d)(1) of the Act, alleges a violation of the standard at 30 C.F.R. 77.1601(c) and reads as follows:

Employee Doug Brush (Front-End Loader Operator) supervised by Roger Regan was observed (on the left platform holding the handrail) outside the cab of the 992-C Front-End Loader. The Front-End Loader was operating at pit 001-0 by Roger Regan (Mine Superintendent) and was being used to load over-burden into rear dump trucks.
~425
The cited standard states that "no person shall be permitted to ride or be otherwise transported on or in the following equipment whether loaded or empty; . . . (c) outside the cabs and beds of mobile equipment. . . ."

It is not disputed that the noted employee was in fact standing on the platform of the front-end loader while it was being operated by the mine superintendent. The door to the operator's cab was closed and the employee was holding onto a handrail with one hand. The platform surface was 30 by 36 inches and was elevated 6 to 8 feet above ground. The loader was being used to scrape ground material to form a dam to keep water off a roadway. According to MSHA inspector Johnny Newport there was a serious hazard to that employee from falling and suffering broken bones.

Respondent argues that it was necessary for the employee to be positioned on the loader platform for instructional purposes. The employee was the regular loader operator and was being shown by the mine superintendent how to use the minimum amount of ground material to form a dam. The Respondent is accordingly raising the affirmative defense of "impossibility of compliance". In order to establish that defense the Respondent must prove that (1) compliance with the cited standard either would be functionally impossible or would preclude performance of required work and (2) alternative means of employee protection are unavailable. Secretary v. Sewell Coal Company, 3 FMSHRC 1380 (1981), aff'd 686 F.2d 1066 (4th Cir.1982).

In this case the mine operator has failed to prove either of the two requisite elements of the defense. I find greater credibility in the testimony of Inspector Newport that the mine superintendent could have successfully demonstrated the techniques of manipulating the front-end loader to the regular operator while that operator was safely observing from the ground. The purpose of instructing the regular loader operator was not so much to observe the manipulation of controls within the cab but to observe the manipulation of the scoop in such a way as to construct a dam by scraping up ground material. Since Respondent has also failed to show that alternative means of employee protection were unavailable, the asserted defense cannot be sustained. The citation is accordingly affirmed.

In light of the undisputed evidence that Respondent has been previously cited for the same type of violation and that Inspector Newport had previously warned the mine superintendent against employees riding outside the equipment, and indeed had given him copies of MSHA bulletins citing ~426 fatalities caused by those practices, I conclude that the mine superintendent was grossly negligent in directing his employee to ride outside the cab of the loader. That negligence is imputed to the mine operator. Secretary v. Ace Drilling Co., 2 FMSHRC 790 (1980).

I also conclude from the uncontested evidence that the circumstances presented a reasonable likelihood that the employee would suffer serious injuries such as broken bones as a result of the cited practice. Accordingly the citation and the attendant "significant and substantial" findings are affirmed. Secretary v. Mathies Coal Company, 6 FMSHRC 1 (1984).(Footnote.1)

Order Number 2218074, also issued pursuant to section 104(d)(1) of the Act, alleges a violation of the standard at 30 C.F.R. 77.404(a) and charges as follows:

The Ford 600 flat bed vehicle (used to carry explosives and detonators) operating on the haulroad near Pit 001-0 was not being maintained in a safe operating condition in that the steering wheel would turn approximtely 360 degrees before the front wheels would turn left or right. A steering box was observed in the bed of the vehicle. The steering box was used as parts to repair the vehicle.

The cited standard requires in relevant part that "mobile . . . equipment shall be maintained in safe operating condition and . . . equipment in unsafe condition shall be removed from service immediately."

According to the undisputed testimony of MSHA Inspector Johnny Newport the subject vehicle was operating on the haulage road toward the explosives magazine. Although the truck was then empty it was regularly used to carry detonator caps, primers and "wet bags" containing an explosive known as "AMFO". It is further undisputed that its steering wheel could be turned 345 to 350 degrees in either direction without any response from the wheels.
~427
The haulage road over which the truck was operating was approximately 25 feet wide, 1 mile long and was composed of rock and dirt. It had at least one turn, and one 300 foot stretch with a 10 to 20 degree grade. The road also had some bumps, provided for two way traffic and was used by various equipment including pickup and dump trucks, a grader, and inspector's vehicles. Within this framework Inspector Newport opined that there was indeed a "significant and substantial" hazard of serious or fatal injuries from an accident regardless of whether the truck was carrying explosives. He concluded that it was reasonably likely that the cited vehicle would be unable to avoid a collision with another vehicle using the road.

While not denying the existence of the cited conditions Superintendant Regan felt that no hazard existed from the defective steering condition. He reached this conclusion from his understanding that the truck was never driven more than 15 miles an hour. Regan also opined that since the brakes were operational the truck could stop within 10 feet. Regan observed that since the caps, detonators and explosives are kept separately on the truck it was highly unlikely that any explosion would result from any truck accident. Inspector Newport agreed that there was little likehood of an explosion absent a fire.

Within this framework it is clear that a serious hazard of collision existed from the defective steering on the cited truck. While superintendent Regan felt that no hazard existed because the truck could be stopped within 10 feet there was such a serious lack of control in the ability to steer the vehicle that even such a distance on a two-way road only 25 feet wide could be fatal. It is highly unlikely that the cited truck was capable of turning fast enough to avoid an emergency such as a swerving vehicle or pedestrian suddenly stepping in its path. Under the circumstances it is clear that a "significant and substantial" hazard existed. Mathies Coal Company, supra. Order Number 2218074 is accordingly affirmed with its attendant "significant and substantial" findings.

The government also claims that the mine operator was negligent in allowing the cited violation because of the negligence of the explosives truck driver. Under certain circumstances a violation committed by a non-supervisory employee may result in a finding of operator negligence. See Secretary v. A.H. Smith Stone Company, 5 FMSHRC 13 (1983). Among the factors to be considered are the supervision, training and discipline of employees to prevent violations of the standard at issue. A.H. Smith Stone Company, supra. The ~428 violation and hazard presented by the defective steering in the cited explosives truck was so plainly obvious that it reflects a seriously deficient and, indeed, negligent supervision, training and discipline of the employee driving the truck. A properly supervised, trained and disciplined employee would clearly have taken that truck out of service immediately. I therefore agree that operator negligence contributed to the violation herein.(Footnote.2)

In determining the amount of penalty to be assessed in this case I am also considering that the mine operator is of medium size and has a moderate history of violations. I note however that a violation of the standard cited in Citation Number 2218067 had previously been committed. Contrary to the Government's allegations I find that the cited conditions were abated promptly. The employee riding outside of the cab of the front-end loader cited in Citation Number 2218067 was immediately removed and the violation cited in Order Number 2218074 was corrected by replacement of the defective steering box within 3 hours. There is no evidence that the penalties assessed herein would have any effect on the operators ability to remain in business.

ORDER

Citation Number 2218068 and Order Number 2218074 are affirmed. Turner Brothers, Inc. is hereby order to pay the following civil penalties within 30 days of the date of this decision:

Citation Number 2218068 -- $300; Order Number 2218074 -- $600.

Gary Melick
Administrative Law Judge (703) 756-6261

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Footnotes start here:-

~Footnote_one

1 Inasmuch as Respondent did not contest this section 104(d)(1) citation pursuant to section 105(d) of the Act, I am without authority to consider the special "unwarrantable failure" finding in this civil penalty proceeding. See Pontiki Coal Corporation v. Secretary, 1 FMSHRC 1476 (1979) and Wolf Creek Collieries Company 1 FMSHRC ---- (1979). There is however ample evidence to support such a finding herein.

~Footnote_two

2 For the reasons stated in footnote 1 supra the unwarrantable failure findings associated with this order are not before me. I note, however, on the facts of this case that such a finding would be amply supported.